This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

William Raymond Tousignant, petitioner,



Linda Lee Tousignant,


Filed March 30, 1999


Halbrooks, Judge

Pope County District Court

File No. F497191

Neil R. Tangen, PO Box 758, Starbuck, MN 56381 (attorney for appellant)

Belvin L. Doebbert, 605 South Lakeshore Drive, Glenwood, MN 56334 (attorney for respondent)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.



Appellant William R. Tousignant seeks review from a judgment and decree of dissolution. Appellant argues the trial court erred in determining that a workers' compensation settlement received during the parties' marriage was marital property. Appellant also contends the trial court abused its discretion by failing to consider respondent Linda L. Tousignant's waste of marital assets. Because we conclude appellant failed to show the settlement was nonmarital property and the trial court properly exercised its discretion, we affirm.


The parties were married in 1986. Appellant sustained a work-related back injury in 1988. Appellant received $42,500 from a 1994 workers' compensation settlement. Under the terms of the settlement stipulation, it was "a full, final and complete settlement of any and all past, present, and future claims for workers' compensation disability benefits, except for non-chiropractic medical." Appellant testified the settlement compensated for future claims.

The parties purchased the marital homestead in 1991. The parties stipulated that $10,000 from the settlement proceeds were applied to reduce the homestead debt by $9,348. The parties also stipulated that the homestead had a value of $56,400 and was encumbered by mortgage debt totaling $48,074.

At trial appellant argued the workers' compensation settlement was nonmarital property, and therefore he was entitled to a nonmarital interest in the homestead. The trial court found appellant did not meet his burden of demonstrating the settlement was nonmarital property. Accordingly, the trial court did not award appellant any nonmarital interest in the homestead. This appeal followed.


1. Marital/Nonmarital Nature of Property

This court need not defer to the trial court's legal determination as to the marital or nonmarital nature of property, but it must affirm the underlying findings of fact unless they are clearly erroneous. Freking v. Freking, 479 N.W.2d 736, 739 (Minn. App. 1992). All property acquired by either spouse during the marriage and before the valuation date is presumed to be marital property. Minn. Stat. § 518.54, subd. 5 (1998). The statutory presumption of marital property is overcome by a showing that the property is nonmarital. Id.

Compensation for a personal injury is nonmarital if it is intended to replace a nonmarital interest such as the person's good health. Van de Loo v. Van de Loo, 346 N.W.2d 173, 176 (Minn. App. 1984); see also Gerlich v. Gerlich, 379 N.W.2d 689, 691 (Minn. App. 1986) (applying Van de Loo principle to workers' compensation), review denied (Minn. Mar. 21, 1986). Compensation received during the marriage for lost wages or lost earning capacity attributable to a time frame following marriage dissolution is also nonmarital property. Swanson v. Swanson, 583 N.W.2d 15, 18 (Minn. App. 1998); Ward v. Ward, 453 N.W.2d 729, 732 (Minn. App. 1990), review denied (Minn. June 6, 1990). A party seeking to have settlement proceeds designated as nonmarital property has the burden of demonstrating that the settlement was calculated to compensate for a nonmarital interest. Ward, 453 N.W.2d at 732; see also Hafner v. Hafner, 406 N.W.2d 590, 594 (Minn. App. 1987) (affirming designation of workers' compensation settlement as marital property where appellant had failed to show it was intended to replace a nonmarital interest).

Appellant argues that the trial court clearly erred by not designating the settlement proceeds nonmarital property. But appellant did not introduce any evidence to show the purpose of the award. The only evidence the trial court had before it was the settlement stipulation reciting the claims released and appellant's testimony that the settlement was for future claims. See Ward, 453 N.W.2d at 733 (stating "[t]he mere recitation of claims released in settlement documents does not establish the purpose of the recovery").

As the trial court observed, appellant's testimony that the settlement compensated for future claims did not illustrate the purpose of the recovery. Even if it was calculated based on future lost wages, appellant presented no evidence regarding whether those future wages were attributable to the time following dissolution. Therefore, appellant failed to overcome the statutory presumption that property acquired during the marriage is marital property. See Minn. Stat. § 518.54, subd. 5 (1998).

2. Distribution of Marital Property

Appellant also argues that the trial court abused its discretion by distributing marital assets equally in spite of appellant's allegations that respondent "trashed the house, disposed of marital personal property and generally ignored court orders." A trial court has broad discretion in dividing property. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Absent an abuse of discretion, the trial court's decision must stand. See id. at 51. "[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01; see also General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987) (judging credibility is within the province of the fact-finder).

Appellant testified numerous items of personal property were either missing or destroyed after appellant left the marital home. Respondent testified that there were no items missing and that she had not intentionally destroyed any items. Given the conflicting state of the evidence, the trial court was required to make a credibility determination. We are not in a position to second-guess that determination. The trial court effectuated an equal distribution of marital assets. It did not abuse its broad discretion.